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Kassa v. Detroit Metro Convention

United States District Court, E.D. Michigan, Southern Division

December 7, 2015

MARK KASSA, Plaintiff,
v.
DETROIT METRO CONVENTION & VISITORS BUREAU et al., Defendants

Page 832

          For Mark Kassa, Plaintiff: Scott S. Yaldo, Yaldo Law, PLLC, Birmingham, MI.

         For Detroit Metro Convention & Visitors Bureau, Detroit Sports Commission, Defendants: C. David Bargamian, Josh J. Moss, Michael K. Steinberger, Todd R. Mendel, Barris, Sott, Detroit, MI.

Page 833

         OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF #9)

         Hon. MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff Mark Kassa (" Kassa" ) holds several trademarks with respect to the phrases " The D" and " Welcome to the D" (the " Marks" ). In this action, Kassa claims that Defendants Detroit Metro Convention & Visitors Bureau and Detroit Sports Commission (collectively " Defendants" ) infringed the Marks when they included the phrase " Welcome to the D" on banners and signs that they displayed promoting two sporting events in the City of Detroit. Defendants deny that their banners and signs infringed the Marks. The Court agrees. Accordingly, for the reasons stated in this Opinion and Order, Defendants' Motion to Dismiss (ECF #9) is GRANTED.

         RELEVANT FACTUAL ALLEGATIONS[1]

         A. Kassa's Registration and Use of the Marks

         Kassa is a " musician and entrepreneur" who hosts an online talk show, the " Welcome to the D Show." (First Am. Compl., ECF #12 at ¶ 7.) Kassa also " operates an online apparel and accessories store [] that sells various products related to Detroit and music." ( Id. ) These products include items promoting Kassa's band and his talk show. ( See id. )

         In connection with these commercial ventures, Kassa owns numerous trademarks

Page 834

for the phrases " Welcome to the D" and " The D":

Specifically, [Kassa] is the owner of three trademarks for the mark " Welcome to the D" for (i) " clothing, namely, shirts and hats" (United States Registration No. 3,724,089), (ii) " entertainment services in the nature of live musical performances" (United States Registration No. 4,117,605), and (iii) " entertainment in the nature of an on-going special variety, news, music or comedy show featuring entertainment news and content broadcast over television, satellite, audio, and video media; entertainment, namely, a continuing music and entertainment news show broadcast over television, satellite, audio, and video media; entertainment, namely, a continuing music and entertainment news show broadcast over television, satellite and internet mediums" (United States Registration No. 4,376,110).
Additionally, [Kassa] is the owner of two trademarks for the mark " The D" for i) " clothing, namely, shirts and hats" (United States Registration No. 4,316,115) and (ii) " entertainment services in the nature of live musical performances" (United States Registration No. 4,333,876).

( Id. ) Kassa has " allocated considerable resources and has dedicated significant effort in promoting and developing" the Marks. ( Id. at ¶ 10.) Kassa has further " continually used the 'Welcome to the D' mark in connection with the promotion, advertising, and sale of entertainment services and related apparel and accessories." ( Id. at ¶ 9.)

         Kassa also operates a website found at the following internet address: http:/welcometothed.com . Kassa's website -- which is referenced in his First Amended Complaint ( see ECF 15 at ¶ 7, Pg. ID 163) -- confirms that " the D" is a shorthand reference or nickname for the City of Detroit. For instance, Kassa tells visitors to his site that his family has been part of the " fabric of Detroit since 1929" and that during his musical career he has been " proud to represent 'the D.'" ( See http://welcometothed.com/about/.) Kassa further encourages those buying apparel bearing the Marks to " wear these items with pride because you are representing one of the greatest cities in America!" ( See id. )

         B. Defendants Use of the Phrase " Welcome to the D"

         In 2012, the Detroit Tigers and San Francisco Giants played in Major League Baseball's World Series. The Tigers hosted two games at their home stadium, Comerica Park, which is located in the City of Detroit. In 2015, the City of Detroit hosted another prominent sports event, the USA Volleyball Open National Championships. (First Am. Compl. at ¶ 12.) In connection with both the Word Series and the Volleyball Championships, " Defendants put up various signs and banners around the City of Detroit" that included the phrase " Welcome to the D." ( Id. ) These " signs and banner[s] were particularly noticeable on street lampposts and the lobbies of hotels and other businesses." ( Id. )

         Kassa attached examples of these signs and banners to his pleadings. ( See ECF #15 at 8-12, Pg. ID 193-197.) The banners for both the World Series and the Volleyball Championships are similar. As depicted below, the phrase " Welcome to the D" appears at the top of the banner; the logo of the sports event and/or promoter of the event appears in the middle of the banner; the phrase " Where Champions Are Made And Championships Are Played" appears below the sponsors' logos; and Defendants' logos appear at the bottom.

Page 835

(Image Omitted)

(ECF #1-1 at 9, Pg. ID ...


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